Covington v. State, 174S25

• Decision Date: 11 February 1975
• Docket Number: No. 174S25,174S25
• Citation: 262 Ind. 636,322 N.E.2d 705,45 Ind.Dec. 576
• Parties: Michael COVINGTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 705

322 N.E.2d 705

262 Ind. 636

Michael COVINGTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 174S25.

Supreme Court of Indiana.

Feb. 11, 1975.

Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John D. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged with murder in the first degree and convicted in a trial by jury of murder in the second degree and sentenced to imprisonment for an indeterminate term of not less than fifteen (15) nor more than twenty-five (25) years under the statute. ¹

The sufficiency of the evidence was challenged by several motions and a tendered instruction which would have withdrawn the issue of murder in the second degree from the jury and, in effect, discharged the defendant upon such offense.

The victim of the homicide was the defendant's two-month-old daughter. Evidence of numerous physical abuses of the child by the defendant are not disputed, but counsel contends that there was not sufficient evidence to sustain a finding that an injury or injuries inflicted by the defendant caused the death and, in the alternative, that there was not sufficient evidence that the injuries inflicted by the defendant were inflicted with the statutorily requisite purpose and malice. These are factual considerations to be determined and reviewed in accordance with established rules. The following, although quoted from the dissenting opinion in Hutchinson v. State (1967), 248 Ind. 226, 240, 225 N.E.2d 828, 837, cited by the appellant, succinctly summarizes the governing axioms:

'All the above are questions of fact for the jury. Baker v. State (1964), 245 Ind. 129, 195 N.E.2d 91; Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d 671. The leading case of Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641 clearly defines our duty in regard to questions concerning the sufficiency of evidence. While this court will not weigh the evidence, it must be determined if there was substantial evidence of probative value from which the jury could have inferred the guilt of the appellant. By substantial evidence, I mean more than 'seeming or imaginary'. The rule is that a verdict on which reasonable men might differ will not be set aside. However, if no reasonable man could find that the evidence has proved an accused guilty beyond a reasonable doubt, then the verdict is not sustained by sufficient evidence. Additionally, it should be stated that to prove a fact or allegation beyond a reasonable doubt requires more than proof by a preponderance of the evidence. See also Epps v. State (1963), 244 Ind. 515, 526, 192 N.E.2d 459; Anderson v. State (1959), 239 Ind. 372, 378, 156 N.E.2d 384.'

The evidence disclosed that the defendant resided with his wife, Rosemary, and two children--a son, Michael, Jr., three years old, and a daughter, Hazel, two months old, who was the victim.

In mid-January, 1973, the defendant took the baby by her arm and shook her. She continued to cry. He put her on the couch and placed one of his knees on the couch and the other on the baby's stomach and chest. Her voice was muffled and she stopped crying for awhile but started again. He held the baby's blanket over her head and held her by one arm and beat her in the back with his fist. Later in the day, Defendant threw a bottle at the baby and then poured water over her face and stuffed a belt into her mouth--all in an effort to make her stop crying. The person who witnessed and testified to this called the police, but when the matter was investigated, both that person and the defendant's wife lied about the incident, and no arrest was made. The baby was examined medically and x-rayed following this incident, but no serious injury was revealed.

On January 28, 1973, the family was at the home of Rosemary's aunt. When they returned to their home, the baby was crying. The defendant grabbed her and choked her. He took her by the leg and slapped her against something--it was not disclosed what. Shortly thereafter, the defendant and Rosemary became suspicious that the baby had a broken arm. This supicion was confirmed a little later at the hospital.

On January 30, 1973, at about 9:00 p.m., the family again returned from a visit to the aunt's house, and the baby was crying. This time the defendant grabbed the baby and choked her. He held her around the waist and slammed her against the wall two or three times. The baby stopped crying and was put to bed. When Rosemary checked her at about 1:30 a.m., she appeared to be all right, but the next morning she was found dead on the couch, where she had been sleeping.

An autopsy was performed on the baby on January 31st. The performing physician testified that she had died of 'multiple injuries' and proceeded to testify: 'There were lesions, traumatic lesions on the head and on the arm and on the chest, lesions that altogether would explain the demise of this person. * * * There was blood in the subtissues in the back of the head and a fracture of the bones on the dome of the skull. * * * There were lesions in the brain as secondary to the fracture of the skull. There were a fracture of the right arm, and there were fractures to the ribs. * * * The fractures in the arm and the skull will be from twenty-four hours to four days old. The fractures on the ribs, they will be around two weeks old.' Referring to the arm fracture, the witness testified, 'It is a complete fracture of the bone with a separation of two segments of the bone.' It could have been caused by '* * * applying a force when there are two points of support to the bone so in such a way that it bends beyond the elasticity that it is allowed and breaks.' Referring to the skull fracture, the witness continued, 'They were produced by a blunt force applied against the head. * * * It would have to be a strong force against the flexible bones of a child.'

It is counsel's contention that the State failed in its burden to prove that the injuries inflicted by the defendant caused the baby's death because the physician who performed the autopsy did not testify with greater specificity as to how the injuries produced the death and because he testified that certain of the injuries were from twenty-four hours to four days old, whereas other evidence was that the occasion of abuse by the defendant likely to have produced such injuries occurred less than twenty-four hours prior to the autopsy. However, with reference to the time interval the physician testified that he was giving an estimate only and that he could not say precisely when the injuries occurred.

As for a finding that the defendant caused the death of the baby, we hold the evidence to be sufficient. If the physician's testimony that the infant died of multiple injuries was wanting in desired specificity, it was,...